State v. West

• Decision Date: 14 February 1989
• Docket Number: No. 53261,53261
• Citation: 766 S.W.2d 103
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Crayton D. WEST, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 103

766 S.W.2d 103

STATE of Missouri, Plaintiff-Respondent, v. Crayton D. WEST, Defendant-Appellant.

No. 53261.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 14, 1989.

Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Crayton West was convicted of seven counts of robbery in the first degree, in violation of Section 569.020 ¹ and sentenced as a prior offender under Section 558.019, to thirty years in the Department of Corrections and Human Resources on each count. The first three sentences run concurrently to each other, and the last four sentences run concurrently to each other beginning when the first three sentences expire. The seven sentences total sixty years. West appeals the trial court's decision on five grounds. We affirm the convictions. We remand for re-sentencing.

West claims that the trial court erred in: (1) denying his motion to suppress evidence, statements, and identifications, because the evidence was obtained as a result of an illegal stop and seizure; (2) overruling his objection to Officer Rose's testimony on the grounds that the state didn't adequately lay a foundation for the officer to give testimony based on his firsthand knowledge; (3) overruling his motion for a mistrial after the prosecutor announced in front of the jury his intention to return money seized from West to Zantigo's restaurant, one of the victims; (4) overruling his challenge to the state's use of peremptory strikes; and, (5) retroactively relying on Section 558.019, forbidding West from applying for parole until forty percent of this sentence has been served, and rendering Section 558.019 an ex post facto law.

The seven robbery convictions share the following facts: (1) a large, black man entered a fast-food restaurant; (2) he ordered food; (3) when tendering money for his order the man used a small black gun to aid him in grabbing the money from an open cash register. The seven robberies occurred between October 8-18, 1986.

In his first point on appeal, West claims that the trial court abused its discretion by admitting evidence, statements and identifications obtained as a result of an illegal stop and seizure. West claims that the police stopped him because he was a large black man in a Buick, not because they observed suspicious behavior on his part. We find that the trial court did not abuse its discretion in overruling Wests' motion to suppress evidence, statements and identifications.

Police radio dispatches and police station announcements related to the crimes for which defendant was charged spoke of a "fast-food robber." They described the robber as a black man with a large build. For two weeks before the stop police circulated a composite photo among the officers and broadcast the description of a black male, thirty-five years old, six-feet-four inches tall, and two hundred seventy-five pounds, muscular build, wearing a red baseball hat and tinted wire-rim glasses. The first radio call on the evening of the final robbery and stop described a six-foot black male, possibly wearing a green jacket.

The last of the seven robberies occurred at Zantigos' restaurant, October 18, 1986. A female Zantigo employee followed the robber after his departure from the restaurant. She saw him walk up a street. She heard a car door shut, an engine start, and saw a car pull out from the curb to the street. When the police arrived she told them: 1) she saw a dark blue, four-door car, possibly an Impala; 2) she saw the car drive two blocks north and turn right onto Fairview towards Grand; and, 3) the robber used a small handgun to aid him in robbing the restaurant.

Shortly thereafter, officers Burford and Laschober were southbound on Grand Avenue when they learned these facts via their radio. They began watching northbound traffic. They spotted a light gray over dark gray Buick Electra proceeding north. They saw that the driver was a large black man. The officers followed him in their patrol car.

The police officers stopped West ² and ordered him out of the car. In a pat down search Officer Burford felt a hard object in West's right front coat pocket. The police officer reached in and retrieved a small dark handgun. Officer Burford testified he placed West under arrest after discovering the gun. Officer Burford continued the search and discovered a wad of paper currency in West's pants. Officer Burford placed handcuffs on West, repeated that he was under arrest and read him his rights.

Fellow police officers brought four witnesses from Zantigo's. One witness viewed West but stated she could not identify him as the robber because the assailant wore a hat and sunglasses. Officer Laschober went to West's car and saw, in plain view, a hat and sunglasses. The witness instantly recognized West as the man who robbed the restaurant after Officer Laschober placed the hat and sunglasses on West.

At a lineup later that evening, employees from other fast food restaurants recently robbed identified West as the man who robbed the establishments where they worked. The trial court overruled objections to this evidence.

The standard for a reasonable stop and search was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, a police officer observed two men continually peer into a store, pace to the corner, confer with a third man then repeat the activities for approximately ten to fifteen minutes. The police officer's suspicions were thoroughly aroused so he approached the three men, identified himself and requested their names. After the men mumbled incoherent responses to his questions, he patted down the outside clothing of one of the men and discovered a pistol. He also found a revolver in the outer pocket of the second man who he patted down. The police officer testified that he did not put his hands under the garments of the men until he discovered the weapons. The court held that the police officer's actions constituted a legitimate stop.

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigation behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Id. at 31-31, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911.

Support of significant governmental interests underlies the holding in Terry. First, there is a strong governmental interest in "solving crimes and bringing offenders to justice." United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Prohibiting state involvement where probable cause is absent would hinder the investigatory police process and possibly permit the suspect to escape. Id. at 229, 105 S.Ct. at 680, 83 L.Ed.2d at 612. Where there is a threat to public safety it is particularly important that the suspect be detained as quickly as possible. Id.

Second, there is a strong governmental interest to allow police officers to assure themselves that the suspect with whom they are dealing is not armed. United States v. Harflinger, 436 F.2d 928 (8th Cir.1970). In United States v. Harflinger the court recognized that Terry condoned a protective search only where the initial steps of the investigative stop did not quell the police officers' fears for his own or others' safety. Id. at 933. The court in Harflinger stated that the police officers' request that the suspect get out of the car to answer questions was within the scope of the investigation because it allowed the police officer to observe the suspect's demeanor and to watch the actions of the suspect for any suspicious behavior. Id.

To uphold the policies underlying the Terry standard it is necessary to meet two tests. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). First, Terry requires that the stop be legally proper when it is instigated. State v. Fernandez, 691 S.W.2d 267, 269 (Mo. banc 1985). "If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved or is wanted in a completed felony, then a Terry stop may be made to investigate that suspicion." Id. (quoting Hensley, 105 S.Ct. at 681). Police had the requisite suspicion to make a legitimate Terry stop in State v. Adell, 716 S.W.2d 469 (Mo.App.1986).

In Adell, Officer Lane heard a radio dispatch that black males had been firing gunshots at each other. She went to the location announced in the dispatch and saw two black males walking from the vicinity of the shooting. She approached the men and asked for identification. Because the suspects met the description and came from the vicinity of the shooting, Officer Lane "had a reasonable suspicion that criminal activity may be afoot." State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979). In Adell, the court held that the police made a justifiable stop because the police had the requisite suspicion though there was no probable cause to arrest. State v. Adell, 716 S.W.2d at 471.

In the instant case, police officers Burford and Laschober made a legitimate Terry stop of West based on the objective facts they knew. First, circulars and announcements heard in the police station for two weeks prior to the arrest described the robber as a large black man. Second, the radio dispatch on the night of the Zantigo's robbery stated: 1) the address of the robbery: 2) the direction in...